County of Crawford v. Nash

Mr. Justice Paxson delivered the opinion of the court, January 3d 1882. At the time the present Constitution was adopted the only provision for the compensation of county treasurers was contained in section 41 of the act of April 15th 1834, P. L. 544, as follows: 1 Each county treasurer shall receive, in full compensation for his services on behalf of the county, a certain amount per cent, on all moneys received and paid by him, which rate shall be settled from time to time by the county commissioners, with the approbation of the county auditors.” Since the passage of said act the compensation of the respective county treasurers has been fixed by the county commissioners and county auditors, as provided therein, except in counties having a population of over 150,000 inhabitants, as hereinafter stated. The plaintiff below was elected treasurer of Crawford county at the November election 1878, and entered upon the duties of his office on January 6th 1879. The compensation of the outgoing treasurer, as fixed under the Act of 1834, was two and one-fourth per cent, upon all moneys received and paid out. Upon February 11th 1879 the commissioners and auditors of Crawford county met, and unanimously agreed that the compensation of plaintiff, as county treasurer, should be fixed at one and one-fourth per cent. The plaintiff contends that this action violates section 13 of article III. of the Constitution, which declares that “ No law shall extend the term of any public officer, or increase or diminish his salary or emoluments after his election or appointment.” The act of 1834 has never been repealed. It may be as [259] smned the convention regarded it with disfavor, from the fact, that section 5 of article XIV. of the Constitution provides, that “ The compensation of county officers shall be regulated -by law, and all county officers who are, or may be, salaried shall pay all fees which they may be authorized to receive into the treasury of the comity or state, as may be directed by law. In counties containing over 150,000 inhabitants, all county officers shall be paid by salary, and the salary of such officer and his clerks, heretofore paid by fees, shall not exceed the aggregate amount of fees earned during his term and collected by or for him.” The Act of March 31st 1876, P. L. 13, was passed, as its title imports, to carry into effect this section of the Constitution. It refers, however, only to counties having a population in excess of 150,000. As to them, specific salaries are fixed by said act for all county officers, including the treasurer. Then we have the act of June 12th 1878, P. L. 187, which ascertains and appoints the fees “ to be received by the sheriffs, coroners, prothonotaries, clerks of the several courts, registers of wills and recorders of deeds of this Commonwealth, except in counties containing more than 150,000 inhabitants or less than 10,000 inhabitants.” No provision is here made for county treasurers, nor is any reference made to their compensation in subsequent legislation, save the Act of April 30th 1879, P. L. 34, which allows them a fee of twenty-five cents for a certified copy of receipt for the payment of taxes on unseated lands, and section 6 of the Act of Juno 6tli 1879, P. L. 102, which allows county treasurers a commission of one per centum on the military fund received and paid out by them. It will thus be seen that the General Assembly has neglected to enforce, by appropriate legislation, that portion of section 5 of article XIV., which declares that “ The compensation of county officers shall be regulated by law,” so far as the county treasurers are concerned, except in the few counties whose population exceeds 150,000. We have no doubt this omission was unintentional. What concerns us now is its effect upon the Act of 1884. It may be conceded that, since the adoption of the Constitution, the General Assembly could not lawfully pass such an act as that of 1834, for the reason, that the section of that instrument referred to imposes upon that body the duty of regulating the compensation of county treasurers. It is too plain for argument that a duty thus imposed cannot be delegated to the county commissioners and county auditors. “ The compensation of county officers shall be regulated by law ” is the imperative command of the Constitution. This plainly means that it shall be ascertained and defined by the legislature. No such language is to be found in the Constitution of 1838. It does not follow [260] from this, however, that the act of 1834 fell with the adoption of the Constitution. It has been repeatedly held, that the Constitution is not self-executing, except wherein it so expressly provides. This subject is discussed, and the authorities collected, in The County of Allegheny v. Gibson, 9 Norris 397. It was accordingly held, in Perot’s Appeal, 5 Norris 335, that section 18 of the above-recited act of March 31st 1876, relative to the salaries of county officers, which postpones the operation of the act until the expiration of the terms of the incumbents, was constitutional. Under all the authorities the Act of 1834 must be regarded as still in force. If not preserved by section 2 of the schedule, it is apparent that since the adoption of the Constitution there has been no provision in counties containing less than 150,000 inhabitants for compensation of county treasurers, and all allowances to such officers have been without law. It was urged, however, that conceding all this to be true, the compensation to county treasurers cannot be increased or diminished during the term for which they are elected, by reason of the 13th section of article III. In Baldwin v. City of Philadelphia, decided at the last term at Pittsburgh (ante, p. 164), it was held, that the word “ law ” in this section of the constitution did not extend to the ordinances of a municipal corporation; that it included only such laws as emanated from the supreme power, which in this Commonwealth is lodged in the General Assembly. In Rucker v. Supervisors, 7 W. Va. 661, which arose under section 9 of article III. of ’ the Constitution of West Virginia, which provides, that the compensation of public officers shall not be increased or diminished during their term of office, it was held, that this language in the Constitution applies only to such salaries or compensation, of public officers as have been definitely fixed or prescribed by law; either by the Constitution of the state or by some statute made in pursuance thereof. If the ordinances of a city are not laws within the meaning of this clause in the Constitution, much less so are the orders or agreements of the couhty commissioners and county auditors in regard to the treasurer’s salary. The obvious meaning of the Constitution is, that the General Assembly should regulate — that is, ascertain and establish — the compensation which should be paid to the respective county treasurers, and that thereafter “ no law ” — that is, no Act of Assembly, should increase or diminish their respective salaries during the term for which they were elected. The whole difficulty in the case in hand grows out of the omission of the legislature to perform this duty. We have no doubt it will be promptly attended to, now that attention has been called to it. In the meantime the Act of 1834 remains in force, and the sal [261] aries of county treasurers not otherwise provided for by law, will have to be ascertained as heretofore. The judgment is reversed, and judgment is now entered in favor of the defendant below upon the special verdict.